STONE, J. —
We think the averment, in the third plea, that the cotton was lost “ without the fault or negligence of defendant,” was intended to embrace, and does embrace, all the agencies and appliances employed in the transportation, and negatives fault or negligence as to each. The Circuit Court, m its charge, placed this construction upon it. Qui facit per alium, faeit per se. Negligence of the employes of the corporation, in navigating the boat, is, in law, negligence of the corporation. The doctrine of respondeat superior applies in all its force; and, under this principle, the corporation is adjudged a guarantor of the river-worthiness of its boat, the completeness of its furnishings, and the skill, diligence, and numerical sufficiency of its officers and crew. The demurrer to the third plea was properly overruled. — Shear. & Bedf. on Negligence, § 59.
2. We do not think the Circuit Court erred, in refusing to suppress certain portions of depositions, of which the following is a sample: “All the cotton under the boiler-deck was [398]*398protected from the weatber, and from sparks.” Both, the language used, and the context, show the sense in which it was employed — namely, that the boiler and hurricane decks extended quite over the cotton. The word protected was used as the synonym of covered. We do not think the jury were, or could have been, misled by it. It was a mere statement of fact, wholly unlike the questions considered in Otis v. Thom, 23 Ala. 469; Gibson v. Hatchett, 24 Ala. 201; and M. & W. P. Railroad Co. v. Edmonds, 41 Ala. 667; which last were at most mere inferences of the witnesses.
3. The motion to suppress certain portions of the deposi-_ tions, because not responsive to the interrogatories, being sprung for the first time on the trial, was rightly overruled. McCreary v. Turk, 29 Ala. 244.
4. In receiving in evidence what is called the protest made by the officers and passengers on the steamer Onward, the Circuit Court erred. Such protests pertain properly to admiralty courts, and to marine voyages, rather than to river transportation. They may be evidence against the master and owners of vessels, in proper cases. They are hearsay^ ex parte statements, and can not be used as evidence against shippers. They are wanting in many essentials, not the least valuable of which is the right to be present and cross-examine. Abbott ou Shipping, marg. p. 380, 381; 2 Conk. U. S. Admiralty, 338-9; 3 Greenl. Ev. §§ 436, 430 et seq.; 1 Best on Ev. § 103. See Celt, Taylor, 3 Hag. Adm, 321.
5. The bill of lading in this case excepts “ the dangers of the river and fire ” from the risks of the carrier. This, and similar exceptions, have been made the subject of much judicial discussion, and, as in most ’other much mooted questions, of great contrariety of decision. All agree that they furnish no excuse whatever for the non-observance of diligence on the part of the carrier; and that when such disaster occurs, it can not be credited to the dangers of the river or to fire, unless it occurred without fault or negligence of the carrier' and his employes. Public policy forbids that common carriers shall contract for immunity from the consequences of their own negligence. Still, they may contract for exemption from the extreme measure of liability which the common law imposes, when no' fraud or negligence is imputable to them.
6. But there are two questions, in this connection, on which the authorities are not in harmony. First, on whom rests the burden of proof that the carrier did or did not employ proper diligence ? Each side of this question has a strong array of authorities. In the case of Steele v. Townsend, 37 Ala. 247, Justice B. W. Walker considered and commented [399]*399on many of tbe authorities, and came to the conclusion, that the true rule lies between the two extremes. After referring to the authorities which declare, without limitation, that the onus is on the carrier to bring himself within the exception, he, in effect, declares that it is incumbent on him only to make a prima facie case of exculpation; and that, beyond this, it is, like any other disputed question of fact, to be determined by the jury, upon a proper consideration of the whole testimony. His language is, “The exception includes only such breakage as care and diligence could not prevent; and the injury is not within the exception, until it is shown that it occurred notwithstanding the exercise of such care and diligence. It is not strictly accurate to say, that the onus is on the carrier to show, not only that the cause of loss was within the exception, but also that he exercised due care. The correct view is, that the loss is not brought within the exception, unless it appears to have occurred without negligence on the part of the carrier; and as it is for the carrier to bring himself within the exception, he must make at least a prima fade showing that the injury was not caused by his neglect.”
This case has been quoted with approbation in all our later decisions. — See M. & O. Railroad Co. v. Hopkins, 41 Ala. 486; Same v. Jarboe, Ib. 644; S. & N. Railroad Co. v. Henlein, 52 Ala. 696. In the last case cited, Beiokelu, C. J., says, “ When a loss or injury happens, the mus probandi rests on the carrier to exempt 'himself from liability; for the law imposes on him the obligation of safety. The owner or shipper is bound to prove no more than that the goods were delivered to the carrier, and the failure to deliver them safely. These facts are prima facie evidence of negligence or misconduct.” Steele v. Townsend, supra, is cited in support of this; and there was no intention to mar or qualify the principle above declared.
The law of this State, then, stands as follows : The shipper makes a prima fade case against the carrier, when he shows the goods were not delivered. This casts the onus on the carrier, to show that the loss occurred from a danger of the river, or from fire; and he must also prove a prima facie 'case of diligence on his part. This, of course, implies a river-worthy vessel, properly furnished and appointed, competent and sufficient officers and crew, and care and vigilance to prevent danger, and to avert it when impending. Any deficiency in the skill or watchfulness of the officers or crew, in the matter of their special function; in the apparatus to extinguish fire, or in its whereabouts or readiness for prompt present use, or in prompt and vigorous effort to extinguish [400]*400a fire when it originates, would fall short of proving a prima facie case of diligence. Beyond these two shifting stages, our decisions have declared no rule in the matter of the burden of proof. The opinion in Steele v. Townsend was delivered by an able and prudent judge, and we adhere to it, believing the principle to be sound.
7. What measure of diligence is required of a common carrier, to bring himself within the exception found in this bill of lading ? Here, again, the authorities, not only are not in harmony, but there is a want of precision in the language in which the principle is often expressed. In Steele v. Townsend, supra, the expressions bearing on this question are, “that discretion and care which the law requires of common carriers * * “ that due diligence and proper skill were used to avoid the accident* * “ liability for losses by neglect, which is the liability of a bailee.”
In New Jersey Steam Navigation Company v. Merchants’ Bank, 6 How. U. S. 344, 384, Justice NelsoN phrases it, “want of due care, or gross negligence.” In Redfield on Carriers, § 371, it is said, “ After the presumption of negligence has been established against a carrier of passengers, it can only be rebutted by showing that the accident was the result of circumstances against which human prudence could not have guarded. By this we are to understand such prudence as one might have taken before the occurrence, and not that which afterwards it may be apparent would have been proper.” This, it will be observed, relates to passengers, and not to freight.
In 2 Greenl. Ev. § 219, speaking of goods received under a special acceptance, and the cause of loss claimed to be within the exception, the author says, the carrier must show, “not only that the cause of the loss was within the terms of the exception, but, also, that there was on his part no negligence, or want of due care.”
In Wylde v. Pickford, 8 Mees. & Wels. 443, 461, Baron Pakke, speaking of the liability we are considering, said, the carrier is “ bound to use ordinary care in the custody of the goods, and their conveyance to, and delivery at their place of destination, and in providing proper vehicles for their carriage” — See, also, Sager v. Portsmouth S. & P. & E. R. R. Co., 31 Maine, 228. We might continue these extracts almost indefinitely, and, in almost every case, in varying phraseology.
The measure of diligence required of bailees, or other persons to whom the goods of others are confided, is not always the same. The nature of the goods, whether easily destructible or not, and the perils attending the proposed mode of [401]*401transportation, should be taken into the account. What would be diligence of a high order in the handling of some articles of commerce, would be gross negligence in the handling of others. Steam, as a motor, on the great highways of commerce, has well-nigh supplanted all other agencies. The perils attending its use, when not directed with vigilance and educated skill, are scarcely exceeded by the great benefits that have resulted from its employment. An ignorant or reckless tampering with its immense capabilities is a crime against life and property, which can scarcely be too loudly condemned, or too severely punished. It savors of that universal malice, spoken of in the books. And when, as in this case, there is not only immense hazard in the unskillful or negligent handling of the instrument of transportation, but the peril is greatly increased by the highly combustible quality of the commodity which constituted the bulk of the cargo, a higher diligence and stricter vigilance are required of those in charge. “ The bailee ought to proportion his care to the injury or loss which is likely to be sustained by any improvidence on his part.” — Story on Bailments, § 15; Ib. § 62. See, also, Steamboat New World v. King, 16 How. 469, which was, like this, the case of a river steamboat; Shear. & Redf. Neg. §§ 7, 11, 19, 23.
In Davidson v. Graham, 2 Ohio State, 131, it is said: “The common carrier has the right to restrict his common-law liability by special contract; and this extends to all losses not arising from his own neglect, or omission of duty. He cannot, however, protect himself by contract from losses occasioned by his own fault. He exercises a public employment, and diligence and good faith in the discharge of his duties are essential to the public interests. He is held to extraordinary diligence — that is, that degree of diligence which very careful and prudent men take of their own affairs; and he is responsible for all losses arising from a neglect of that high degree of diligence enjoined on him by his public employment.”
In the ease of Baker v. Brinson, 9 Rich. Law, 201, speaking of an exception in the bill of lading, the court said, “ It is only necessary to bear in mind that the character of the carrier is not changed: his liability only, to the extent of the exceptions, is diminished. In all things else, the very same principles apply. Care and diligence are still elements of the contract, and ‘ strict proof ’ is properly required before any exemption may be claimed.” So, in Swindler v. Hilliard, 2 Rich. 286, 306, the court said, “ The carrier’s liability is diminished, to the extent of the exception, but his character is not changed. He is still a common carrier, so long as any [402]*402of tbe incidents and liabilities of that employment remain. He is a public carrier for hire, and the exception in the bill of lading does nothing more than excuse him where the loss has happened by fire without fault or negligence on his part.”
In the case of Selma & Meridian Railroad Co. v. Butts, 43 Ala. 385, this court said, “ The business of the whole country, and the vast necessities of commerce, require that these means of transportation shall not be abused to the injury of the citizen. They are, therefore, held to the strictest accountability for all losses occasioned by their neglect to discharge any of the duties attached by law to the office and trust of common carriers.” — See, also, Williams v. Grant, 1 Conn. 487; Neal v. Saunderson, 2 Sm. & Mar. 572; Leech v. Baldwin, 5 Watts, 446; Graham v. Davis, 4 Ohio State, 362; Caldwell v. N. J. Steam Nav. Co., 47 N. Y. 282; 2 Greenl. Ev. § 219; Sager v. Portsmouth S. & P. & E. Railroad Co., 31 Me. 228; Chamberlain v. Ward, 21 How. 548; Clark v. Barnwell, 12 How. 272; Rich v. Lambert, Ib. 347.
In view of the very great necessity for skill and watchful-. ness in the management of steamboats navigating our waters, and carrying passengers and freight as a business, we approve and adopt the rule of diligence required in our sister States of Ohio and South Carolina, and hold that such common carrier, who would excuse himself under the exception found in this bill of lading, must be shown to have employed “that degree of diligence which very careful and prudent men take of their own affairs.” In this we but affirm that only very careful and prudent men should be placed in charge of such vehicles of transportation, and that they shall employ their care and prudence actively, as such men watch over their own important interests and enterprises, of similar magnitude and delicacy. A more precise rule of diligence, in such cases, we are unable to lay down, as matter of law.
8. The act of congress, entitled “ An act further to provide for the safety of the lives of passengers on board of vessels propelled in whole or in part by steam, to regulate the salaries of steamboat inspectors, and for other purposes,” approved July 25, 1866 (14 Stat. at Large, 227), enacts, “That cotton, hemp, hay, straw, or other easily ignitible commodity, shall not be carried on the decks or guards of any steamer carrying passengers, except on ferryboats crossing rivers, and then only on the sterns of such boats, unless the same shall be protected by a complete and suitable covering of canvass, or other proper material, to prevent ignition from sparks, under a penalty of one hundred dollars fox each offense.” The steamer, in the present case, was carrying passengers, had on board a large quantity of cotton, stored on its guards [403]*403and lower decks, which was not “ protected by a covering of canvass or other material,” within the letter or spirit of the act of congress. The cotton was ignited, but not from sparks, and the boat and cotton were burned up. If there had been, over the cotton, “ a complete and suitable covering of canvass, or other proper material,” such as is used on steamboats (called tarpaulin), the cotton would not have ignited, and both it and the boat would have been saved. It is contended for appellant, that this failure to conform to the requirements of the act of congress was, per se, negligence, which renders the appellee liable for the cotton. Against this view it is urged, that the purpose of the enactment was, what the title shows, “ further to provide for the safety of the lives of passengers;” and that it neither increases nor diminishes, the liability of the carrier in the matter of freight.
In the case of Brown v. The Buffalo & State Line Railroad Co., 22 N. Y. 191, there was an ordinance of the city, which forbade, under a penalty, “ the moving of locomotives or cars on any portion of the defendant’s railway, within the city, at a rate of speed exceeding six miles an hour.” Plaintiff’s intestate, crossing the track of the railroad on a public street, was struck and killed by defendant’s train, which was “ moving at a rate of speed exceeding six miles an hour.”- A bare majority of the court decided, “ that the simple act of the defendant, of running the train at a greater rate of speed than six miles an hour, unconnected with any actual negligence, involved the defendant in no other consequences than the payment of the penalty.” Denio, SeldeN, and Clabke, JJ., dissented. In the case of Filio v. Jones, 43* N. Y. 328, this case was cited approvingly, and an opinion delivered, not distinguishable from the last one in principle. In the case of Jetter v. N. Y. & Harlem R. R. Co., 41* N. Y. 154, speaking of the case from 22 N. Y. supra, the Court of Appeals said : “ That case stands upon grounds altogether too doubtful to justify its application to cases not strictly within it. The opinion confounds all distinction between civil remedies and criminal punishments, and the authorities cited by it go no farther than to hold that, when a specific penalty is prescribed by a law forbidding an act not per se criminal, the act is not othenoise punishable as a public offense. It failed to recognize the axiomatic truth, that every person, while violating an express statute, is a wrongdoer, and, as such, is, ex necessitate, negligent in the eye of the law; and that every innocent party, whose person is injured by the act which constitutes the violation of the statute, is entitled to a civil remedy for such injury, notwithstanding any redress the public may have.”
[404]*404In Shear. & Redf. on Negl. § 484, it is said : “ Certain precautions are required of railroad companies, bj statutes or local ordinances, and enforced by the imposition of penalties for their neglect; such, for example, as a limitation of speed in certain places, a requirement that a bell shall be rung on approaching a highway, &c. These regulations being clearly intended for the protection of travellers, it would seem natural to suppose, that any violation of them should be deemed culpable negligence, in an action brought by a trav-eller ; and so it is generally held.” Speaking of the case of Brown v Buffalo, &c., R. R. Co., supra, the same authors said: “We do not think, however, that this decision will be followed in any other State; and we doubt whether it will long be adhered to even in New York.”' — See, also, Liddy v. St. Louis R. R. Co., 40 Mo. 506.
In Langhoff v. Milwaukee & P. Du Chn. Railway Co., 19 Wisc. 489, it was adjudged, against the railroad company, that “ the fact that the speed [of the train] was unlawful, must be considered in determining the question of negligence.” To the same effect is Blannier v. L. & Y. Railway Co., 8 Court of Exchequer, 283.
We do not think the case of Brown v. Buffalo, &c., R. R. Co., 22 N. Y., can be supported on principle, and we can not follow it. In that case, the controlling purpose of the ordinance, no doubt, was a better protection to human life, by preventing the surprise and danger which a rapid-moving train might cause to persons in a city, whose business or pleasure caused them to cross the railroad tracks. The death of Mr. Brown was the direct, immediate consequence, and the very result which the ordinance was intended to prevent. No rule of law is better settled, than that the violator of both the letter and spirit of a statute is amenable to any person who is injured proximately by such violation, if the injury be within the mischief intended to be prevented. Such was the case in Brown v. Buffalo, &c., R. R. Co., supra, and we are not surprised it did not give satisfaction. — See Fawcett v. York, &c., R. R. Co., 2 Eng. L. & Eq. 289; McCall v. Chamberlain, 13 Wis. 637; Corwin v. N. Y. & Erie R. R. Co., 3 Kernan, 42.
But this principle does not fully meet the wants of the present case. The act of congress of July 25, 1866, was expressly designed for “ the safety of the lives of passengers and property destroyed is the gravamen of the present suit. We have, then, the case of the violation of a statute, intended for the protection of life, the immediate, proximate consequence of which violation is the loss of property. Is the violator of such statute responsible civilly for the damage ?
[405]*405In Waring v. Clark, 5 How. U. S. 441, 465, it is said: “ Signal lights at nigbt are a proper precaution, conducing to the safety of persons and property. The neglect of it, or of any other requirement of the statute, subjects the masters and owners of steamboats to a penalty of two hundred dollars, which may be recovered by suit or indictment. But, besides the penalty, if such neglect or disobedience of the law shall be proved to exist, when injury shall occur to persons or property, it would throw upon the master and owner of a steamboat, by whom the law has been disregarded, the burden of proof to show that the injury done was not the consequence of it.” — See, also, N. J. Steam Nav. Co. v. Merchants’ Bank, 6 How. U. S. 344, a very interesting case.
In the case of Renwick v. N. Y. Gen. R. R. Co., 36 N. Y. 132, the statute required the ringing of a bell on trains, while approaching and crossing highways. The court said : “ If no signal was given, from the train, of its approach to the crossing where the injury occurred, either by the ringing of the bell, or the sounding of the whistle, the defendants are chargeable with negligence.”
The ease of Wakefield v. Conn. & Passumpsic Rivers R. R. Co., 37 Verm. 330, was very peculiar in its circumstances. The statute required that, “ on every locomotive engine, the bell shall be rung, or the steam whistle blown, at least eighty rods from the place where the railroad shall pass any road or street on the same grade, and the ringing or blowing shall be continued until the engine shall have passed such crossing.” Plaintiff, in a vehicle drawn by horses, had crossed the track, and was travelling the road, parallel with the railroad track, about thirty rods from the crossing, when a train, approaching from the opposite direction, first blew its whistle, about five rods from the plaintiff, and thirty or forty rods from the crossing. Plaintiff’s horses took fright, broke from his control, and, getting loose from the vehicle, returned to the crossing, and were injured by the train. The argument was, that if the whistle had been sounded eighty rods from the crossing, the plaintiff could have kept his horses under control, and thus avoided the injury. The .court said : “ Two questions are made in this case, under this provision of the statute: 1st. Whether the plaintiff, having passed the crossing, and got some thirty-five rods from it, on his way, before the engine arrived at the place prescribed, may insist upon having the bell rung, or whistle blown, as upon a duty due to himself. It seems plain that the purpose of the law is to secure as much safety as could be done by notice of the approach of an engine, against accidents at, and by reason of such crossing. While such accidents are, in the main, [406]*406likely to happen to persons approaching, and about passing such crossing, yet they are not confined to such persons. And we think it would be an unwarrantable restriction of this provision of the statute, to hold that the duty thereby imposed has reference only to persbns approaching, or in the act of passing the crossing. In our judgment, that duty exists in reference to all persons who, being lawfully at, or in the vicinity of a crossing, may be subjected to accident and injury by the passing of engines at that place.”
In Wilson v. Pres. & Dir. Susquehanna Turnpike Co., 21 Barbour, 68, the court said, “If there was a failure on the part of the defendant to comply with an express requirement of the statute, either as to the width of the road, or the mode of its construction, and a person travelling over it sustained an injury in consequence of such omission, the defendant is responsible, unless it appears that the plaintiff could have avoided the injury by the exercise of ordinary care and prudence. * • * The omission to comply with the statutory requirement is a nuisance, for which a party, injured without negligence on his part, may claim damages.”
In Shearm. & Redf. on Neg. § 13a, it is said, “If a railroad company is required by law to fence its track, to ring bells, or to give other warnings of danger; or, if one building a wall is required to make it of a certain thickness; or if obstructions to a street are prohibited; a violation of any of these legal regulations is sufficient evidence of negligence.”
In Dale v. Hall, 1 Wils. Rep. 281, Lee, Ch. J., said, “Every thing is a negligence in a carrier or hoyman, that the law does not excuse.” — See, also, G. & C. Union R. R. Co. v. Dill, 22 Ill. 264; C. B. & Q. R. R. Co. v. Triplett, 38 Ill. 482; A. & S. R. R. Co. v. McElmurry, 24 Geo. 75; Ernst v. Hudson River R. R. Co., 35 N. Y. 9, 35; Corwin v. N. Y. & E. R. R. Co., 3 Ker. 42; McCall v. Chamberlain, 13 Wis. 637; Fawcett v. Y. & N. M. R. R. Co., 2 Eng. L. & Eq. 289; James B. Wright v. M. & M. R. R. Co., 4 Allen, 283; Linfield v. O. C. R. R. Corp., 10 Cush. 562.
In Shearman & Kedf. on Negligence, § 344, it is stated, as a general rule, “that one who sustains a special and particular injury from an unlawful act, prejudicial to the public, may maintain an action for his own special injury.” So, in 1 Addison on Torts, 241, it is said, “Whenever a special or particular damage is sustained by a private individual, from a public nuisance, an action for damages is maintainable.” Crommelin v. Coxe, 30 Ala. 318; Loflin v. McLemore, 1 Stew. 133.
It is a fmiliar principle of criminal law, that one who, in the commission, of a crime, or even of a trespass, by misad[407]*407venture, and without intention, inflicts a personal injury on another, is liable criminally for the latter act, the grade of his guilt being measured by the grade of the crime or offense he was knowingly committing. Thus, an offender who, in the commission of an independent felony, accidentally commits a homicide, is adjudged guilty of murder. If he had been committing a misdemeanor, or trespass, and had slain another by misadventure, this would have been manslaughter. In such eases, the guilt of the offense intended is transferred to the injurious act done, and the gravity of the one determines the magnitude of the other. — 2 Whar. Amer. Cr. Law, §§ 997-8-9, 933, 965; McManus v. The State, 36 Ala. 285.
It might be argued that, inasmuch as steamboats, carrying passengers, were, under the act of congress of July 25, 1866, required to protect cotton and other combustible freights by a complete covering, this would operate an inducement to ship cotton on boats that carried passengers, rather than on those that simply carried freights. ¥e prefer, however, to base our opinion on other and broader grounds. Governed by the principles above declared, and by the analogies of the law, we hold, that the appellee, in running its boat in palpable disregard of the act of congress, as to a complete covering of the cotton, rendered itself accountable for the damage which resulted to the appellee, the same being manifestly a direct consequence of such disregard of the statute.
9. It is contended, however, that because the act of congress of July 25, 1866, was expressly repealed by the act approved February 28, 1871 (16 U. S. Statutes at Large, 440), which repeal was before this case was tried in the Circuit Court, the present action, so far as it rests on that statute, is in the nature of a suit for a penal liability, and must fall with it. But this is not a penal action, nor a suit in the nature of a penal action. It is a suit to recover damages, which resulted to the plaintiff, from the failure of the defendant to conform to the requirements of an act of congress. The failure and consequent loss fixed the charge of negligence upon the carrier, and denied to him the defensive protection, reserved in the bill of lading, against loss by fire. The loss, then, in the eye of the law, was the result of negligence ; because a violation, by a common carrier, of a duty enjoined by law, is negligence. A subsequent repeal of the statute cannot convert negligence into diligence. In Woods v. Armstrong, at December term, 1875, we considered a question similar to this; and then held that the repeal of a statute, which-enjoined a duty, did not purge the taint in a contract, made while the statute was in force, and in disregard of its terms.
[408]*408Many of tbe rulings of tbe Circuit Court were not in harmony with tbe principles we have declared. We deem it unnecessary to point them out.
Tbe judgment of tbe Circuit Court is reversed, and tbe cause remanded.